Posts Tagged ‘criminal defense attorney’

Police, judges, and other public officials often mess up like the rest of us by getting a DUI.   The cases inevitably make the newspaper, as well they should.  However, I am often a little surprised by how the media portrays DUI cases that are resolved with a “deferred prosecution”.  A deferred prosecution is when a DUI defendant gives up his right to a jury trial, and the case is continued for five years.  The defendant gets fives years of probation and alcohol treatment, and if he stays out of trouble then he may have the case dismissed at the end of 5 years.   Under Washington law, any DUI defendant is eligible for a deferred prosecution if he or she has not had one before.  So why is it that the news media portrays this as some sort of special deal reserved for people with “connections”.   For example, look at this headline in the Spokesman-Review: “Police Sergeant Avoids Prosecution“.   The article goes on to explain that the defendant has to go to alcohol treatment and stay out of trouble for five years.   How did the public react to this story?  Let’s look at the comments to the story that are posted online.  “Tinman” wrote: “WHERE DO I GET ONE OF THOSE ”GET OUT OF JAIL” CARDS FOR MYSELF??!!”   The answer is any district court in the State!  The forms are online here!  Last summer a city manager in Burien signed up for a deferred prosecution for a DUI, and the headline read that the judge “granted” the deal.  An angry comment read: “It seems we have a two tier judicial system, one for the rich/politician and one for Joe six pack.”  The truth is that the deferred prosecution is easy to sign up for, but difficult to complete.  The treatment is rigorous, and the conditions of probation severe.  Random UA tests are done that can detect alcohol use within a period of 72 hours.  People who complete the programs are in the minority.  I remember when I was a prosecutor, the judge and I were always glad to see someone successfully complete such a program.  Now that I am a criminal defense attorney, I always make sure that my clients know what they are getting into when they sign up for such a program.  It is truly for people who wish to quit drinking.

Let’s face it, when people generally look for an attorney, they are looking for an attorney to really shine when it comes to the trial or maybe at a motions hearing.  You don’t really hear people say that you should hire so-and-so because they are “really good at arraignments”.   Yet, I have found arraignments to be very important to clients for the following reasons: 1) Defendants sometimes appear for an arraignment before hiring or speaking with a criminal defense attorney,  2) The arraignment is often the client’s very first appearance in court, and 3) The arraignment can often be intimidating because it is often on a crowded docket day, when many people are watching.

Arraignment on DUI Charge: Although you might suspect the arraignment of a major felony to be the most complicated, it is actually arraignments on DUI charges that can be the most complicated.   While some arraignments can be waived by counsel, a DUI charge typically requires that the defendant appear in person to have conditions of release set.   Like any charge, an arraignment on a DUI charge involves a formal plea of “guilty” or “not guilty”.   Because a plea of “guilty” requires a lengthy plea form, such a plea would likely be set off to a future date.  The court at DUI arraignments will set certain conditions of release if they have not been already set.  The court will typically prohibit a defendant from consuming alcohol or drugs without a prescription.  Additionally a court will often forbid a DUI defendant from being present in any location where alcohol is served for consumption on the premises.   This largely restricts a person’s ability to go out to eat, because a lot of restaurants in the small towns in Stevens, Ferry or Okanogan County have class H liquor licenses.

Arraignment of Drug Cases: On misdemeanor drug cases, an arraignment can often be waived if a person has hired a defense lawyer and the lawyer files a notice of appearance.  In the courts of Ferry County, Stevens County, and Pend Orielle County, you see the growing practice of courts requiring pre-trial UA tests.  I believe that public funding has become available so that if a person is indigent, the county will pay for the testing.  The idea of pre-trial UA tests is obviously preferable to being held in jail prior to trial, but it is usually not a popular requirement.   The UA’s typically can detect marijuana use within a few weeks, and alcohol use for about three days.   Typically, when a person signs up for the UA tests, they are assigned a specific color code.  The person is then ordered to call in by a specific time to see if their color has been chosen for that day.  If it has, the individual must appear for the test by a certain time later that same day.  This responsibility can be problematic because if a person lives in a remote location of  Okanogan County or Stevens County, for example, they may live an hour or more from the testing facility.  They would unexpectedly need a ride to court.  In certain cases, a person may test positive for marijuana due to use of the drug prior to arrest.  Additionally, a person may test positive for opiates due to use of prescription drugs of hydrocodone or oxycontin for example.  A copy of a valid current prescription must be kept at hand.

Arraignment on Violent Offenses:

Arraignment on violent offenses is procedurally much like arraignments on DUI or drug offenses.  For all felony charges, the court will ask the defendant to sign an advice of rights form acknowledging that they understand their constitutional rights.  During the arraignment it is important that no statements are made that could be self-incriminating.  It is the natural human reaction to explain one’s actions.  However, the arraignment is not the occasion for the court to determine the accuracy of the charges.   This idea can often be confusing for a defendant, because the prosecuting attorney will likely summarize or paraphrase the police reports in an attempt to secure a high bail.  And the defense attorney will often attempt to argue the weaknesses of the State’s case based on the limited information available.  However, this dialogue is much different than a defendant attempting to make a first person explanation so as to counter the allegation at hand.  Such statements by the defendant could be used in court at a subsequent jury trial, and often times the judge will interrupt the defendant if he or she attempts to explain the incident that forms the basis of the charge.  Unlike arraignments for DUI or many drug offenses, the court will often impose bail as a condition of release on such violent offenses as assault, robbery, or sex offenses.  Under the Washington State Constitution, the judge cannot hold a defendant without bail on any offense other than capitol offenses.

So if you are interested in exactly how a Superior Court arraignment will go, it usually goes pretty much like this:

Step 1:  The judge calls the case title “State v. Smith”, for example, and then recites the court case number, before inviting the defense attorney and his or client to approach counsel table.

Step 2: The judge will ask the defense attorney if he or she has gone over the advice of rights form with his or her client, and if the defense lawyer believes that the defendant understands the rights.  The prosecution often signs the form before the defense lawyer approaches the bench with the form.

Step 3:  The judge will ask the defense lawyer if the defendant “waives reading” of the “information” which is the court term for the criminal complaint or charging document.   The accused person has a right to have the charges read to them verbatim under the Constitution.

Step 4:  Once the defendant waives reading, the judge will ask the defendant to stand and will ask for example: “To the charge in count one, possession of marijuana, how do you plead? Guilty or not-guilty?”  The defendant responds.  The judge then asks: “To the charge in count two, possession of cocaine, how do you plead?”  Etc.  Sometimes, the only speaking a defendant will do at an arraignment is to say “yes” that he understands his rights, and to say “not guilty” once the charge is read.

Step 5:  The judge will then hear argument as to the conditions of release to be set.  The judge will hear from both lawyer, and then ask the defendant if he or she agrees to abide by those rules.

Step 6:  The judge will often sign a scheduling order providing for the court dates to come.  The judge will set a date for an “omnibus hearing”, a “status hearing” or a “pre-trial hearing” and a jury trial.  An omnibus hearing is the date for the prosecutor and the criminal defense attorney to declare what evidence they intend to use, what witnesses they intend to call, and what defense will be offered.  Sometimes a defendant will not need to appear for an omnibus hearing.  This is a good point to clarify at the arraignment.  A status hearing or a pretrial hearing is a date to confirm the readiness of the parties for trial, and this hearing can go by many different names.   Often times, a client will ask me what the purpose of a particular hearing is, and the short answer is often “that this is a court date is to talk about future court dates.”  That might sound a little silly, but that is our court system for better or for worse.  The last thing I will say about the scheduling order is that a defendant should bring his or her calendar.  If they are unavailable for court due to a surgery or a final exam for example, they should make that known at arraignment, because rescheduling it later can be difficult for the defense lawyer to do.

There are not any video arraignments of Washington Courts that I could find, but below is an arraignment on a murder case off of youtube.

The expense of high quality video surveillance equipment has plummeted, and many businesses are installing sophisticated  systems into their businesses.  This is posing a challenge to robbery and burglary suspects.  It seems like you cannot watch the news or go online without seeing photos or video footage of these guys caught in the act.

This youth apparently covered his head with his T-shirt before being caught by a security camera

But burglary and robbery suspects are finding new ways to cover their faces when they are on the job.  I saw this photo to the left in the Olympian online yesterday that the police released with the hope of identifying him.  For the latest Eastern Washington crime/court news, I visit the blog Sirens & Gavels.  The stories in this blog by Meghann Cuniff usually include surveillance photos.  I read the Spokesman-Review in print, but I check their online site for the audio/video content.

This photo depicts Terran D. Schatz, who plead guilt to second degree robbery. Schatz was an Iraq war veteran who apparently became addicted to oxycontin

I follow all the local oxycontin robberies, and have blogged about this in the past, see earlier post.  The pattern that many of these robbers fit, is to try to cover as much of their face as possible without it seeming too suspicious.  Obviously if a person walks into a pharmacy or business with a bandanna over their face then that will alert everyone as to their intentions.  In my experience as a criminal defense attorney, some suspects keep these robberies as low-key as possible, simply presenting their demand to the counter in the form of a note.  In Meghann Cuniff’s blog today,  she posted surveillance footage of a failed armed robbery attempt by a man who allegedly walked into a pharmacy in Hayden with a gun to attempt to get oxycontin.   The suspect left empty-handed because the pharmacy avoids keeping it in stock due to the rash of such robberies.  Notice the suspect’’s mannerisms as he walks into the store.  He clearly is aware of the presence of the security camera, and would have likely visited the store in advance to observe the placement.   The suspect casually covers his face with his hand, as if to suppress a cough, but drops his hand down after he passes the camera.   His head is covered with a hood and hat.

Such surveillance videos pose a challenge to the investigator and attorneys handling such cases.  The equipment is difficult to operate, and often times a store owner is not aware of how to duplicate the recording for the police.  In metropolitan areas, specialized robbery or major crimes detectives are well practiced at handling such equipment, but in our more rural counties deputy sheriffs often struggle.  As a defense attorney, I have dealt with armed robbery allegations cases where the video was replayed by the police to see, but was never copied for court or made available to the jury.   Often times, when a copy is made the file is “compressed” reducing the quality of the video footage.  “Compression” is the process by which a larger data file is reduced in size to more easily fit on a disk or flash drive.  Video quality varies from camera to camera, but unlike on TV, it is rare that the video can be significantly enhanced.  When I defended an armed robbery allegation in Okanogan County, I worked with an expert who used Photoflair to try to enhance the image, but it was not very successful.   Photoflair has been used in a lot of high profile cases, and can be helpful, but it is not like on CSI.   In the future, the police will not necessarily need to post the photo of a robbery suspect to solve the crime.  Face recognition software already exists and came on my MacBook when I bought it.  When I add photographs from my camera to my computer, the program recognizes the subjects of the photos and tags the photos accordingly.  It is possible that someday the police could match a photo of a robbery suspect with other photographs the suspect has posted on social networking sites.

Having defended such cases and worked with oxycontin addicts, I grow frustrated with the manufacturer of oxycontin, Purdue Pharma.   As I wrote in an earlier post, pharmacautical company Purdue-Pharma invented and mass-marketed oxycontin.  The company agreed that it committed a felony when it marketed oxycontin and hid how unsafe it was.  The company faced 600 million in fines after it plead guilty, but the executives never went to jail.  The company encouraged doctors to proscribe it not just to dying cancer patients, but to people with even moderate pain.   Many addicts were thus created.  According to a story in the New York Times, “…Purdue Pharma contended that OxyContin, because of its time-release formulation, posed a lower threat of abuse and addiction to patients than do traditional, shorter-acting painkillers like Percocet or Vicodin.”  Less addictive then vicodin (i.e. hydrocodone)?  Now that really makes me chuckle.   Remember the above video of the robbery suspect who tried to rob the pharmacy but they did not stock oxycontin?  He left empty handed.  He didn’t ask for percocet or vicodin as an alternative.  He knows there is no substitute or no pharmacy drug like oxycontin.  It’s only equivalent is heroin.

The DEA has cut back on prescriptions for oxycontin, but you really can’t put the genie back in the bottle.  Addicts will rob pharmacies rather then suffer the agony of withdrawal.  Further steps are needed to limit oxycontin’s use.

When a person thinks of their constitutional rights, they often think of their right to free speech, or to bear arms, or the right to a jury trial.  The Washington Supreme Court dealt last week with a right that we do not always think of.  That is, the right to a “public” trial.   This was in the case of State v. Strode, a case originating out of Ferry County.  The right to a public trial is in the 6th Amendment to the U.S. Constitution, which reads:   In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

In the case of State v. Strode the Supreme Court had to decide whether it was appropriate for a judge to question potential jurors in chambers, as opposed to the open courtroom.   On certain cases, the parties obviously want to know whether a juror has been the victim of, or been charged with the crime in question.   The practice usually involves the judge inviting the juror back to chambers, along with the prosecutor, defense attorney, and defendant.   The State Supreme Court ruled that this may be acceptable in certain circumstances as long as a certain analysis is done on the record justifying the decision.

Although we learn about our constitutional rights in school, lay people I work with are often surprised at the way that the right to a public trial works.   It is often thought that it is acceptable to “close the courtroom” at certain times or even to allow a child witness, for example, to speak to the judge privately in chambers.   Such practices are prohibited by the U.S. Constitution for criminal trials.

This right to a “public” trial has come up several times in my practice as a criminal defense lawyer.  I once had a trial where an undercover cop was testifying about work he did on a case.  Although his identity was known to me and my client, the agent still had other cases that he was working elsewhere in the state.  The prosecutor moved to close the courtroom, but the judge had to deny the motion.

As we know courtrooms are often pretty empty during a trial.  Often times the defendant’s family will be present or a spouse of a juror will attend. However, it is any person’s right to just come in to a court and watch a trial or a docket.  When I travel to different places I often like to visit the local courthouse.  I once sat through a half-day trial in New York City, and when I was in law school, I often sat through jury trials in Spokane.  The right to a public trial belongs to a defendant, but also to the public.  Often times, it is the news media who raises this issue.

I once worked as a defense lawyer on a First Degree Murder case in Ferry County where the issue of a public trial arose.   The electronic locks on the courthouse doors lock automatically at 4:00 p.m.  The attorney general prosecuting the case stepped outside for a breath of fresh air during the recess and was locked out.  After a while, when court was set to resume we wondered where he went and found him outside.   Needless to say, the settings were changed on those locks.  Although it may seem a bit silly to some, locked doors at a courthouse would have required a new trial had it not been fixed.

Several years ago, I had a case in Okanogan County where a 6-year-old child was testifying during a non-jury trial.   The case dragged on through the morning, and people started to arrive for the afternoon traffic court docket.   The courtroom that had been previously empty started to fill up, and the pro tem judge directed the bailiff to post a sign on the door directing defendants to wait outside until their case was called.  I wondered if this was permissible, but the issue never got to the appeal level.

In the case of State v. Strode, the Supreme Court granted the request of the defense attorney for a new trial.